A few quick comments about today’s argument. Know that I’m reading a cold transcript. All the “laughter” indicators suggest today’s argument was a jolly one.

Justices Sotomayor, Ginsburg, and Kagan asked the majority of questions, and their questions suggested some sympathy with the tribal position. Chief Justice Roberts, and Justices Kennedy, Scalia, and Breyer participated as well. Justices Alito and, as is his custom, Thomas asked no questions. If the questions were any indicator, I’d say there may be no more than three votes for the tribal position.

This is a complex, technical question that I find difficult to sort out. On one hand, the tribal interests wish to access Congress’s judgment fund in cases where a self-determination act contract is breached in that Congress has not appropriated enough funds to cover the costs of the contract. If there were a trial, tribal interests hope to prove that the Department of Interior’s practice of allocating these costs to individual tribes is arbitrary and capricious, but they cannot do that since this case comes to the Court on summary judgment.

On the other hand, the government reads the appropriations cap as an absolute bar to accessing the judgment fund, and moreover that this isn’t a contract breach case at all. The government’s briefing suggests a constitutional bar, but that question never seemed to have much salience on the argument.

Justice Scalia’s questioning suggested that a Congressional spending cap is absolute, and controls the outcome. If so, then the contract breach theory probably dissolves, and the access to the judgment fund goes with it. There may be some play in how the government allocates the money under the spending cap, but that will just put tribes against each other and the Department of Interior.

The tribal interests face a plain language problem, and Carter Phillips effort to rely on the Redbook promulgated by the Comptroller that basically says, “Don’t worry, federal contractors, everyone’s going to get paid even with a spending cap,” seemed to fall flat. Indian tribes as contractors are different because the government cannot cancel those contracts (and the history of tribal-federal relations that informs this arrangement is irrelevant to the Court).

I find it interesting and a bit unfortunate that the government and a majority(?) of the Court are willing to apply rules that are detrimental to Indian tribes because of their unique status and that of the statutory framework that applies to them. Justice Sotomayor’s questions suggest she shares that concern. I do not believe that special rules unique to tribal interests that benefit those tribes would withstand scrutiny by the Court, although we haven’t seen anything like that reach the Court lately.